Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal  No. 706 of  2007

United India Insurance Co Ltd through its branch manager , branch office, Semri Kothi, in front of Supermarket, Raebareilly presently through Deputy Manager, regional office That, United India Insurance Co. Ltd., Kapoorthala Bagh Complex, Aliganj, Lucknow.                     …Appellant.                                                                         

1- M/s Chauhan Furniture and Iron Store

    Yamunapur Chauraha through its the

    proprietor Sri Ram Prakash Singh

    S/o Sri Udai Singh resident of village

   Yamunapur Chauraha, Pargana & Tehsil, 

    Unchahar, District, Rae Bareilly.

2- Punjab National Bank through its Branch

    Manager, Branch Office NTPC Unchahar,

    District, Rae Bareilly.                                .…Respondents.

Present:-

1- Hon’ble Sri Rajendra  Singh, Presiding Member.

2- Hon’ble Sri Sushil Kumar, Member.

Sri  A. K. Srivastava,  Advocate for Appellant.

Sri  Harikant, Advocate for Respondent no.1.

None for the respondent no.2.

Date  10.05.2022

JUDGMENT

Per Mr. Rajendra Singh, Member: This Appeal has been filed under Section 15 of The Consumer Protection Act, 1986 by the appellant against the judgment and order dated 15.01.2007  passed by Learned District Consumer Forum Rae Bareilly in Complaint Case no.111 of 2004, M/s Chauhan Furniture and Iron Store Yamunapur Chauraha through its proprietor Sri Ram Prakash Singh Vs. United India Insurance Co. Ltd. through its Branch Manager.

The brief facts of the appeal are that, that the respondent no.1 has filed a consumer complaint no.111 of 04 before the

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Learned District Consumer Disputes Redressal Forum, Rae Bareilly  alleging therein that he owns a shop under the name and style “M/s Chauhan Furniture and Iron Store” at Jamunapur Chauraha where he kept finished and unfinished wooden and plastic furniture set was Rs.3 lakhs and the said shop was financed by the respondent no 2 and which was insured with the Appellant insurance company for the period 19 December 2002 to 18 December 2003, but the policy schedule was not given and the aforesaid shop was always inspected by the respondent no.2 and was satisfied and thereafter with the permission of respondent no.2 he shifted his aforesaid shop to another shop where a fire was broke out in the night of 26/27.6.2003 resulting in the damage to the goods In the shop worth more than Rs.3 lakhs and an intimation with regard to the aforesaid fire was given to the police station concerned and also to the Appellant insurance company.

The surveyor was appointed who inspected the shop and submitted his report but the insurance company repudiated the claim but the complainant/respondent no.1 has sought compensation for his loss in which the firm claimed an amount of Rs.299,820/– apart from Rs.4 lakhs towards physical, mental pain and financial loss. The insurance company filed his written statement and stated that the complainant has received the copy of the insurance with schedule through respondent no.2 Punjab National Bank and the shop was inspected after receipt of intimation about the loss by independent licensed surveyor who assessed the loss to the tune of Ra.19,500.00 which comes in excess clause wherein it was also provided under the terms and conditions

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that if the loss is less than Rs.25,000/–, the claim was not payable, as the case may be, after applying the excess clause can be assessed the amount of loss and which can only be paid as a result of which loss was assessed up to Rs.9500/– only but however, since the complainant has changed the place of insured shop without any intimation to the Appellant insurance company, the same amounts to voilation of the terms and conditions, as a result of which his claim was repudiated as no claim.

The learned District Forum ignored the specific terms and conditions of the policy insured and further non-availability of the evidence about the actual loss of Rs.299,820/– which in fact was found to be up to Rs.19,500/– and applying excess loss was assessed up to Rs.9500.00 only which too  was not payable on account of volition of terms and conditions of the insurance policy but however the Forum has allowed the same on its own whim and fancy to the extent of Rs.183,000/– by the impugned judgement and order which is wholly perverse, illegal and against the facts and records. The impugned judgment has been passed on the basis of hypothetical conjectures and surmises. The loss was assessed applying the excess clause and it came to Rs.9500/– but due to violation of conditions of the policy, the claim has been repudiated. The complainant failed to prove his case beyond reasonable doubt through reliable evidence but the learned Forum completely ignored the report of independent surveyor having expertise and technical know-how in the field. The impugned order is manifestly erroneous, illegal and apparently resultant of nonapplication of mind and further a nonspeaking which cannot be sustained in the eye of law.

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Therefore it is humbly prayed that this Hon’ble Commission be pleased to allow the appeal and set aside the impugned judgment and order.

We have heard the learned counsel for the appellant Sri A. K. Srivastava and learned counsel for the respondent no. Sri Hari Kant. None appeared for the respondent no.2. We have perused the pleadings, evidence and documents on record.

We have seen the judgment of the learned District Forum. As far as change of place of the shop is concerned, it does not matter because in the policy no such bar has been imposed on the shifting of shop. As far as loss is concerned, the complainant did not submit any stock to show the stock just before the fire. The surveyor appointed by the Appellant has assessed the loss as Rs.19,500/– but after applying the excess clause it has been reduced Rs.9500/ only the learned District Forum found that in the report of surveyor some articles were shown burnt, some food and art also shown as burnt but there is no specific report regarding burning of articles which were kept in the shop and in the absence of stock register it could not be assessed as to how much articles were there. The learned Forum has assessed the loss at Rs.183,000/- only without any cogent evidence. The learned Forum is a judicial body and it should have taken various aspects of the occurrence of while assessing the damage. There is one report of surveyor and except this no other evidence is on record to assess the loss of the complainant. If we do not apply the excess clause, the loss comes Rs.19,500/–. In absence of stock register and reliable evidence, we are of the view that the complainant is entitled to

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 get Rs.19,500/ only. So keeping in view all the circumstances of the case we are of the view that complainant is entitled only for Rs.19,500/–. The appeal is decided accordingly.

ORDER

The appeal is partially allowed. The impugned judgment and order is amended to the extent that the opposite party no 1 is directed to pay Rs.19,500/in place of Rs.183,000/–. Rest part of judgement is confirmed. Cost on parties.

The stenographer is requested to upload this order on the Website of this Commission today itself. 

          Certified copy of this judgment be provided to the parties as per rules.        

       (Sushil Kumar)                              (Rajendra Singh)

            Member                                    Presiding Member

Judgment dated/typed signed by us and pronounced in the open court.

Consign to record.

       (Sushil Kumar)                              (Rajendra Singh)

            Member                                    Presiding Member

Jafri, PA II

Court 2